{ "id": 865102, "name": "John C. Lullman et al. v. Charles P. Barrett et al.", "name_abbreviation": "Lullman v. Barrett", "decision_date": "1886-05-11", "docket_number": "", "first_page": "573", "last_page": "575", "citations": [ { "type": "official", "cite": "18 Ill. App. 573" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "102 Ill. 100", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "58 Ill. 431", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5236550 ], "opinion_index": -1, "case_paths": [ "/ill/58/0431-01" ] }, { "cite": "13 Ill. 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2582915 ], "opinion_index": -1, "case_paths": [ "/ill/13/0055-01" ] }, { "cite": "3 Howard, 563", "category": "reporters:state", "reporter": "Howard", "opinion_index": -1 }, { "cite": "18 Wall. 272", "category": "reporters:scotus_early", "reporter": "Wall.", "case_ids": [ 3426670 ], "opinion_index": -1, "case_paths": [ "/us/85/0272-01" ] }, { "cite": "104 Ill. 440", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5347373 ], "opinion_index": -1, "case_paths": [ "/ill/104/0440-01" ] }, { "cite": "44 Ill. 37", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5223549 ], "opinion_index": 0, "case_paths": [ "/ill/44/0037-01" ] }, { "cite": "20 Ill. 515", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "72 Ill. 161", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2712348 ], "opinion_index": 0, "case_paths": [ "/ill/72/0161-01" ] }, { "cite": "42 Ill. 291", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5293485 ], "opinion_index": 0, "case_paths": [ "/ill/42/0291-01" ] }, { "cite": "3 Scam. 91", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2472391 ], "opinion_index": 0, "case_paths": [ "/ill/4/0091-01" ] }, { "cite": "1 Scam. 471", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2480069 ], "opinion_index": 0, "case_paths": [ "/ill/2/0471-01" ] }, { "cite": "13 Ill. 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2582915 ], "opinion_index": 0, "case_paths": [ "/ill/13/0055-01" ] } ], "analysis": { "cardinality": 288, "char_count": 4537, "ocr_confidence": 0.491, "pagerank": { "raw": 1.0121743975973819e-07, "percentile": 0.5424688852516112 }, "sha256": "2f1ac1c92d6ad2289c4ca0c8915066c520a182645fa566af11473983acb3faca", "simhash": "1:987ff31ef8c0526f", "word_count": 800 }, "last_updated": "2023-07-14T17:14:19.454599+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John C. Lullman et al. v. Charles P. Barrett et al." ], "opinions": [ { "text": "Moran, J.\nThe demurrers of the appellees to the appellants\u2019 declaration, were sustained by the court below, and, instead of standing by the pleading, the plaintiffs moved the court for leave to file an amended declaration, and obtained said leave. Afterward, appellants sought to amend by filing a bill in chancery, in place of the declaration, and thus changing the proceeding from an action at law to a suit in chancery. Leave to file the bill in the action at law was denied, and the action was dismissed out of court.\nAppellants assign for error the sustaining of the demurrer to the declaration, and the refusal of the court to allow the amendment changing the proceedings to a suit in equity.\nBy electing to take leave to file an amended declaration, instead of standing by the declaration to which the demurrer was sustained, the plaintiffs abandoned their declaration, and can not assign the sustaining of demurrer for error.\nIt has been repeatedly decided that when judgment is given against a party on demurrer to a pleading, such party, if he wishes to obtain a review of the judgment, must stand by his pleading in the court below, otherwise he will be precluded from assigning the judgment for error. Gilbert v. Maggord, 1 Scam. 471; Snyder v. Gaither, 3 Scam. 91; Gardner v. Haynie, 42 Ill. 291; Snell et al. v. Cottingham, 72 Ill. 161; McFadden v. Fortier, 20 Ill. 515 ; Camp v. Small, 44 Ill. 37.\nCounsel contend that the court erred in refusing leave to file the bill of complaint and change the form of the action to a suit in chancery, and argue that section 24, Chap. 110, R. S. 1874, authorizes the amendment and change proposed.\nCourts of chancery and courts of law are, in this State distinct tribunals. Though they may be presided over by the same judge, \u201cthey possess separate and distinct jurisdiction.\u201d Ross v. Buchanan, 13 Ill. 55.\nThis distinction has been constantly recognized by the legislature, and at the same session at which the \u201c act in regard to practice in courts of record,\u201d from which counsel cites, was enacted, an \u201c act to regulate the practice in courts of chancery \u201d was passed.\nSection 37 of the last named act authorizes amendments of chancery pleading, and is, in that regard and as governing that court, a complete code in itself.\nBy section 24 of the Practice Act, the amendment of proceedings in the law courts is provided for, and while the language is broad, and authorizes changes from one form of action to another, it can hardly be construed as authorizing, by amendment of the pleadings, a change from one jurisdiction to another. It is true, as counsel states, that the intention of the Jaw-makers constitutes the law, but that which is within the letter is not within the statute, unless within the intention.\nWe apprehend that whenever the legislature of this State shall see fit to introduce such a change as counsel is contending has been made, it will be so done that there will he a perfect accord between the letter and the spirit of the statute.\nThe ruling of the circuit court was correct and must be affirmed.\nAffirmed.", "type": "majority", "author": "Moran, J." } ], "attorneys": [ "Messrs. Willard & Driggs and Mr. Frauk J. Loesch, for appellants;", "Messrs. C. C. & O. L. Bohhey and Mr. Lymatt M. Paihe, for appellees;" ], "corrections": "", "head_matter": "John C. Lullman et al. v. Charles P. Barrett et al.\n1. Demurrer.\u2014When judgment is given against a party on demurrer to a pleading, such party, if he wishes to obtain a review of the judgment must stand by his pleading in the court below, otherwise he will be precluded from assigning the judgment for error.\n2. Jurisdiction\u2014Changing prom daw to chancery.\u2014Courts of chancery and courts of law are, in this State, distinct tribunals. Though they may be presided over by the same judge they possess separate and distinct jurisdiction. Where parties upon demurrer to a declaration elected to take leave to file an amended declaration, and afterward sought to amend by filing a bill in chancery in place of the declaration. Held improper to thus change the action at law to a suit in chancery.\nAppeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.\nOpinion filed May 11, 1886.\nMessrs. Willard & Driggs and Mr. Frauk J. Loesch, for appellants;\nthat the court erred in overruling the motion to change the form of the action from an action at law to a suit in chancery, cited R. S., 1874, Ch. 110, \u00a7 24; St. Peters v. Germain, 104 Ill. 440; Atkins v. Fiber Dis. Co., 18 Wall. 272; N. S. v. Freeman, 3 Howard, 563.\nMessrs. C. C. & O. L. Bohhey and Mr. Lymatt M. Paihe, for appellees;\nas to jurisdiction, cited Ross v. Buchanan, 13 Ill. 55; Chancery Act of 1845; Hodgen v. Guttery, 58 Ill. 431; Booth v. Wiley, 102 Ill. 100." }, "file_name": "0573-01", "first_page_order": 569, "last_page_order": 571 }